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excited utterance

Excited utterance, under the Federal Rules of Evidence , is defined as a statement that concerns a startling event, made by the declarant when the declarant is still under stress from the startling event. Excited utterance is an exception to the hearsay rule.

In order for a statement to meet the exception, the moving party must show that the statement was made while still under stress and does not breach Sixth Amendment rights. Excited utterance does not constitute hearsay under the logic that people after a startling event will most likely be reacting to the event and will not have had the time to consider making false statements. So, only statements made while still startled will be considered as an excited utterance. Factors such as how long since the startling event, physical appearances of stress, and an unsettled voice may help determine that a person was still under stress from the event. One major consideration is how soon after the startling event the statement was made. Typically, statements made soon after the event will more easily be shown as an excited utterance, but the longer a person has to contemplate the event, the less likely the person will be reacting out of a startled state.

An excited utterance also must not violate the confrontation clause of the Sixth Amendment which ensures that a defendant be given the opportunity to question a witness with statements against them. Under the guidance set out by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 68 (2004) , an excited utterance will not be admissible if the declarant is unavailable, the defendant has not been able to cross-examine the witness, and the statement is testimonial. The critical piece of analysis here is whether the statement is testimonial. While testimonial remains unclear, statements that attempt to recall the details of the event may breach this requirement. For example, a witnesses’ statements to 911 will likely be considered non-testimonial as the person is trying to get help instead of documenting what happened. However, responses by that witness to questions about the event hours afterwards may be considered testimonial in nature. 

[Last reviewed in November of 2022 by the Wex Definitions Team
]

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